COURT OF APPEAL FOR ONTARIO
Watt, Tulloch and Lauwers JJ.A.
IN THE MATTER OF: Bruce Hamill
AN APPEAL UNDER PART XX.1 OF THE CODE
Peter Mudry, for the appellant
Leslie Paine, for the respondent, Attorney General for Ontario
Janice Blackburn, for the respondent Person in Charge of Waypoint Centre for Mental Health Care
Heard in writing and released orally: June 27, 2019
On appeal against the disposition of the Ontario Review Board, dated April 8, 2019.
REASONS FOR DECISION
1On December 15, 1992 the appellant was found not criminally responsible on account of mental disorder on a single count of first degree murder. The trial judge did not conduct a disposition hearing. The Ontario Review Board conducted a hearing and ordered that the appellant be detained at what was then the Oak Ridge Division of the Mental Health Centre at Penetanguishene.
2On an annual basis since that time, the Board has held hearings to determine the disposition that is necessary and appropriate in the circumstances as required by ss. 672.54 and 672.81 of the Criminal Code. The most recent disposition, made on April 8, 2019, for reasons released on April 17, 2019, ordered the appellant’s continued detention at Waypoint Centre for Mental Health Care.
3By Notice of Appeal dated the day following the day on which the Board released its reasons for decision, the appellant appealed the decision of the Board to this Court.
4On June 20, 2019, the court was advised by the respondent, Attorney General for Ontario, that the appellant had passed away on May 21, 2019 when detained at Waypoint.
5It is well-settled that, as a general rule, an appeal abates with the death of the appellant. Despite this general rule, an appellate court retains jurisdiction to proceed to hear the appeal if the court considers it in the interests of justice to do so. It is a discretion which should be sparingly exercised: R. v. Smith, 2004 SCC 14, [2004] 1 S.C.R. 385, at paras. 11 and 20.
6To determine whether there are special circumstances that make it in the interests of justice to proceed to hear and determine an appeal despite the death of an appellant, an appellate court must consider all the circumstances. Among, but not dispositive of the factors relevant for consideration are these:
i. the presence of a proper adversarial context;
ii. the strength of the grounds of appeal;
iii. the existence of special circumstances that transcend the death of the individual appellant, such as a legal issue of general public importance, a systemic issue related to the administration of justice or collateral consequences to the deceased’s family, other interested persons or the public;
iv. the expenditure of limited judicial resources; and
v. the likelihood that continuing the appeal would go beyond the judicial function of resolving concrete disputes and involve the court in freestanding legislative-type pronouncements more appropriately the role of the legislative branch.
See Smith, at para. 15.
7The issues raised in the Notice of Appeal are narrow. The relief sought equally so. The arguments proposed and the remedy sought do not transcend the boundaries of this litigation. No systemic issue related to the administration of justice emerges. Counsel on all sides, for the appellant detainee, the respondent Crown and the hospital agree that there are no special circumstances that would merit an exercise of our discretion to hear the appeal. We agree with that assessment.
8In the result, the appeal abates with the death of the appellant. And for that reason it is dismissed.
“David Watt J.A.”
“M. Tulloch J.A.”
“P. Lauwers J.A.”